New law fails to protect our genes status

1 February 2013 11 February 2018

The proposed anti-discrimination Bill has gone back to the drawing board in the A-G’s office, but there’s one aspect that needs major surgery: the draft actually discriminates against anyone with a genetic mutation “ about half the Australian people “ in employment, superannuation and life insurance. It must be fixed. CLA Director Tim Vines explains…

The proposed anti-discrimination Bill has gone back to the drawing board in the A-G’s office, but there’s one aspect that needs major surgery: the draft actually discriminates against anyone with a genetic mutation â€“ about half the Australian people â€“ in employment, superannuation and life insurance. It must be fixed. CLA Director Tim Vines explains

Palms sweaty you wait in an airless office studying a brown outback-rural printed artwork, with the odd sheep, that’s memorably forgettable. Here, nervously about to pitch for the job of your dreams, you run through pre-prepared answers. ‘What qualities you do you think you could bring to the job?’ ‘Tell us about the time you overcame adversity?’ ‘Give us an example of your *shudder* “strategic thinking”’.

Don’t bother. You’re not getting the job: the world’s best resume, shining recommendations from employers or top-notch uni scores won’t make up for the indelible, unalterable profile you bear – your DNA. It marks you a possible potential liability to the business…and that’s that.

Most people don’t expect to suffer genetic discrimination. After all, gender, race, age, sexuality, physical disability, or political and religious views are more likely targets for the intolerant employer, principal, bean counter or bouncer. The laws protect us against people like that (unless you want to study or work in a religious institution). But with genetic discrimination, your personal future is at risk right now in relation to employment, life insurance, superannuation, etc – possibly because of the slip of a bureaucrat’s pen. And about half of all Australians could be affected.

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

But the government’s proposed new law doesn’t keep this reference to ‘future’ disabilities, or a disability that’s part of your genetic make-up. There’s no reference to genes or genetic susceptibility anywhere. No reason has been offered in the ‘Explanatory Memorandum’ for abolishing this protection; the government has not explained a change of policy that puts citizens at the mercy of nosey bosses, among others. No evidence has been put forward to contradict the Australian Law Reform Commission’s 2003 finding that

there is no policy justification for excluding discrimination based on possible future genetic conditions from coverage by the [Disability Discrimination Act]. As well as having an educative effect, an appropriate amendment would put the matter beyond doubt and would ensure that the question did not need to be tested in the courts

Removing this protection comes just as more and more Australians are getting relatively cheaper genetic tests from companies like 23andMe. In the age of emerging ‘personalized medicine’, people are sending hair, blood and saliva samples overseas. These consumer tests, some of dubious clinical value, can inform a risk assessment of developing problems, including heart disease and diabetes.

As testing DNA widens, it is crucial we stay protected from genetic discrimination, particularly any legislated by government. Americans have this protection, we currently do but we can’t afford to lose it.

First, genetic discrimination can lead to racial discrimination. An employer could refuse to hire someone of Maori descent because they had read in the media about a ‘Warrior Gene’ and were concerned the employee could behave violently. (It’s unlikely the employer would remember that the study had been debunked).

Second, genetic discrimination can happen because of a family member, not you. In 1995, Bradley Trindall became a NSW policeman. He has sickle-cell trait, an inheritable genetic condition. In 2000, Mr Trindall’s brother (who also had it) died after being assaulted, with the coroner suggesting the brother’s sickle-cell trait may have contributed to his death. Alerted by the coroner’s report, NSW Police put Mr Trindall on restricted duties. They stopped him wearing his police uniform outside work and driving marked police vehicles. While ostensibly done for his own good, it was clearly a breach of the Disability Discrimination Act, the Federal Magistrates Court found.

Finally, genetic discrimination is particularly insidious because a genetic predisposition is no guarantee you’ll get the disability or disease. In fact, the environment may play a more important role in your health than your genes.

So, while some women carry a mutation suggesting a relatively higher risk of breast or ovarian cancer, it’s not certain they will develop that type of cancer. Likewise, some people who develop paranoid-schizophrenia, depression, alcoholism or a gambling addiction are believed to have a genetic susceptibility. But that doesn’t mean everyone with that genetic susceptibility will become heavy drinkers or gamblers.

Imagine if an employer refused to hire you because they thought you might one day steal from them to feed a gambling addition, based on your genes? Or if a life insurance company refused you a policy because a relative had committed suicide (suggesting depression in your family)?

And you may not be able to refuse to answer their nosey questions. Right now, the law prohibits genetic discrimination, and so it also prohibits an employer from

‘[requiring] a prospective employee to provide genetic information if the employer intends to use that information to unlawfully discriminate against the employee on the ground of a disability of the employee.’

However, because the government’s proposed new law doesn’t recognise genetic discrimination, it no longer protects you against prying questions from bosses. And of course, your employer may not even know what a gene is. They may have read something in the newspaper and formed a prejudice against it – that is the heart of discrimination.

The Senate Committee looking at the Anti-Discrimination Bill must ask the Attorney-General’s Department why this protection was removed. And, if they don’t like the answer, then Parliament should put this protection back when the legislation is introduced to parliament later this year.

Australian workers should be judged by their performance, not their [genetic] profile.

The Tasmanian AG has instantly rejected the CLA Australia Day call for an inquiry into the state’s legal system in 2020-2021. 'Nothing to see here, the system's perfect,’ she suggests. See CLA AUST DAY LETTER